Parakh Vanijya Private Limited v. Baroma Agro Product and Ors.
2018 (76) PTC 1 (SC)
- Plaintiff claimed to use the mark ‘MALABAR’ for Biryani Rice from 2001.
- Defendants started to use the mark ‘MALABAR GOLD’ for Biryani Rice.
- Plaintiff filed a suit in 2012 for infringement of trade mark and passing off against Defendants before High Court of Calcutta.
- Defendants was allowed by Single Judge to use the word ‘MALABAR’ with word ‘BAROMA’ in the same font but the word ‘MALABAR’ may be increased with font size of not more than 25% than the rest of the words or letters.
- Being aggrieved, Plaintiff preferred appeal before Division Bench. The Division Bench dismissed the appeal holding that the Single Judge has passed the order balancing the interest of the parties who are having a substantial turn over in their respective business.
- The present appeal was filed against the said order of Division Bench.
Appellant/Plaintiff ’s Contentions:
- Appellant is the registered owner of the label mark in Class 30 in respect of rice, etc. and most prominent feature of its mark is the word ‘MALABAR’.
- In the registration under Class-30, there is a disclaimer for the word ‘MALABAR’. The disclaimer is worded thus:
Condition & Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR’ AND ALL OTHER DESCRIPTIVE MATTERS
- Appellant though claims exclusive right over the word ‘MALABAR’ since there is a disclaimer to the exclusive use of the word ‘MALABAR’, the Appellant has no right over the exclusive use of the word ‘MALABAR’. Respondents have brought on record materials to show registration under Class-30 with the word ‘MALABAR MONSOON’ granted to Amalgamated Bean Coffee Trading Company Limited which also contains similar disclaimer. Similarly, ‘MALABAR COAST’ has been registered by Tropical Retreats Private Limited which again contains a similar disclaimer.
- High Court rightly held that Appellant cannot claim exclusive right over ‘MALABAR’.
- Insofar as the label mark used by the parties, both appear to be substantially different.
- Keeping in view the interest of the respective parties who are said to be having substantial turn-over in their respective business, the High Court rightly held that the Respondents would be entitled to use the word ‘MALABAR’ in conjunction with ‘BAROMA’ with the different get-up as approved by the High Court.
The appeal was dismissed.